LAW 515-001 – Property I
Possessory estate is the right to possess a piece of property now.
A fee tail estate allows the grantee to posses the land for the remainder of his life, but limits him from selling, giving, or devising the right of possession after his death. Instead the title is automatically inherited by the grantee's next lineal descendant. As it relies on having lineal descendants, at some point the law presumes that one will not be available and the estate will naturally end.
A defeasible estate is one that is capable of being ended by the occurrence of a particular event.
Three kinds of limitations can accomplish this:
A determinable estate may end early automatically upon the happening of the limiting event.
If the future interest is retained by the grantor, it gives him a possibility of reverter.
- subject to an Executory Limitation
An estate subject to a condition subsequent requires the grantor to take some action to reclaim the property.
It relies on a condition happening. Words of condition are like: "but if", "provided that", "on condition that", or "however". The words of limitation will usually be separated from the original conveyance by punctuation, instead attached to the following future interest.
It gives a right of entry as a future interest.
A future interest is the right to possess a piece of property in the future.
- with a condition precedent before the remainder-holder can take possession or
- one that is given to an unascertained person.
It's like being subject to a condition subsequent, but backwards. Something has to happen before the natural termination of the preceding estate.
e.g. O to A for life, then to B if B has reached 25 years old.
An executory interest automatically takes effect upon the happening of the condition.
When the same person holds both a present possessory estate (or vested future interest) and the next vested future interest (i.e., no other person hold an intervening vested future interest), and the interests were not created by the same conveyance, then the present possessory estate (or vested future interest) merges with the vested future interest (lesser merges into greater) and destroys any intervening contingent remainders.
No interest is good unless it must vest and close, if at all, not later than twenty-one years after some life in being at the creation of the interest.
Does not apply to future interests in the grantor.
A future interest is void the moment it is created if:
- It is given to a grantee (a remainder or an executory interest);
- It is either contingent (given to an unascertained taker or subject to a condition precedent or both) or subject to open [or executory]; and
- It might still be contingent or subject to open longer than 21 years after the death of the last person alive at the time of the conveyance.
The Wait & See reform does not test for possibilities at the time of conveyance.
It will test after one of two times:
- Wait & see for the common law period (lives in being plus 21 years)
- Wait & see for 90 years
Interest is valid if at least one of the following is true:
- It complies with the original Rule against Perpetuities
- It is certain to either vest and close or fail within 90 years
- It actually vests and closes or fails within 90 years (a "wait and see" approach)